DeRosier v. USPlabs, LLC, Civil No. CCB-10-2559
| Decision Date | 17 November 2011 |
| Docket Number | Civil No. CCB-10-2559 |
| Parties | PHILIPPE H. DEROSIER, JR., v. USPLABS, LLC and JACOB GEISSLER |
| Court | U.S. District Court — District of Maryland |
This suit arises from plaintiff Philippe DeRosier, Jr.'s use of a supplement called Jack3d, manufactured by defendant USPLabs. Now pending before the court are defendants' motion to exclude the testimony of plaintiff's proposed expert witness, Eric T. Merriweather, defendants' motion for summary judgment, and defendants' request for attorney's fees. The matter has been fully briefed, and no hearing is necessary. See Local Rule 105.6. For the reasons that follow, the defendants' motion to exclude Mr. Merriweather's testimony and motion for summary judgment will be granted. The defendants' request for attorney's fees will be denied.
In June 2009, in advance of a track meet in Istanbul, Turkey, Maryland-based sprinter Philippe DeRosier, Jr. consumed Jack3d in order to "give him energy" for his race. (Deposition of Philippe DeRosier, ECF No. 86, Exh 1, at 106.) Approximately two months later, Mr. DeRosier was informed by anti-doping officials that he had tested positive for a banned substance, 2-Methyl-2-Hexamine (MHA). The U.S. Anti-Doping Agency (USADA) took action against Mr. DeRosier under a "catch-all" provision in the World Anti-Doping Agency's list ofinternationally prohibited substances that bans all "substances with a similar chemical structure or similar biological effect(s)" to those enumerated.1 (ECF No. 63, Exh. 18, at 7.) Shortly thereafter, Mr. DeRosier entered into an agreement with the USADA to voluntarily accept a six-month suspension and retain his opportunity to try out for the 2012 Olympics. (ECF No. 63, Exh. 17.)
Mr. DeRosier promptly returned to competition in February 2010 when his suspension ended. (Deposition of Philippe DeRosier, ECF No. 86, Exh. 1, at 267.) According to his complaint, however, the stigma from being identified as a "doper" prevented Mr. DeRosier from finding a manager "to secure his entry into world-class track meets and pay for his travel costs." (Complaint, ECF No. 2, at 6.) Mr. DeRosier claims that he was consequently unable to compete in the 2010 U.S. National Track and Field Championships and has not been able to pursue his sprinting career since then. (DeRosier Deposition, ECF No. 86, Exh. 1, at 279-80.) Mr. DeRosier also alleges that he lost out on valuable shoe endorsement contracts and potential future employment as a coach due to his consumption of MHA.
Mr. DeRosier filed a complaint against USPLabs, LLC, and Jacob Geissler, Chief Executive Officer of USPLabs.2 The complaint sets forth causes of action in negligence, strict liability, breach of implied warranty of merchantability, negligent misrepresentation, fraudulent concealment, and unfair or deceptive trade practices under the Maryland Consumer Protection Act. Mr. DeRosier alleges loss of past earnings and earning capacity, future earnings andearning capacity, and non-economic losses due to the defendants' failure to warn him that the supplement contained a substance banned under the catch-all provision in WADA's list of prohibited substances.3 Mr. DeRosier seeks $1.8 million in general damages.
The defendants move to exclude the testimony of Mr. DeRosier's proffered expert witness, Mr. Eric Merriweather. (See Motion to Exclude Plaintiff's Proposed Expert Witness, ECF No. 64.) Mr. DeRosier identified Mr. Merriweather as a "damages expert" and submitted a report by Mr. Merriweather to substantiate his claim for economic damages. (Report of Eric T. Merriweather, ECF No. 64, Exh. 1; Opposition to Motion for Summary Judgment, ECF No. 82, at 27.) Mr. Merriweather's report asserts that "if not for his positive test for a banned substance in 2009," Mr. DeRosier would have received endorsement contracts and appearance fees and prize money, including a five-year base salary from a shoe endorsement contract totaling $450,000. (Id. at 5.) The report concludes that Mr. DeRosier would have earned approximately $1,685,500 over five years if he had not taken the Jack3d supplement. (Id.)
When testimony concerning scientific, technical, or other specialized knowledge is offered in support of a party's claim, the trial judge must ensure under Rule 702 of the Federal Rules of Evidence that any such testimony is "not only relevant, but reliable." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-49 (1999) (); Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199-200 (4th Cir. 2001). To fulfill that responsibility, the trial court must conduct "a preliminary assessment ofwhether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Daubert, 509 U.S. at 592-93; see also United States v. Barnette, 211 F.3d 803, 815 (4th Cir. 2000).4
The proponent of expert testimony bears the burden of establishing its admissibility. Maryland Cas. Co. v. Therm-O-Disc, Inc., 137 F.3d 780, 783 (4th Cir. 1998). The defendants argue that Mr. Merriweather's testimony is inadmissible because he lacks the qualifications to provide an informed estimation of damages and because he employed an unreliable and unprincipled methodology to reach his conclusions. They contend that Mr. Merriweather has neither the expertise nor the experience to qualify as a damages expert and that his credibility is further undermined by the fact that he is Mr. DeRosier's "friend" and "mentor" and wrote the report free of charge. (Deposition of Eric Merriweather, ECF No. 64, Exh. 2, at 14, 26; DeRosier Deposition, ECF No. 64, Exh. 3, at 9.)
Mr. Merriweather's report provides specific estimates as to Mr. Desosier's lost earnings and earning capacity, but, as the defendants contend, the report fails to support those estimates with even the most basic information about Mr. DeRosier's past records or rankings or with relevant industry standards. The report opens by stating that Mr. DeRosier had "the ability to become one of the top 5 athletes in our country and the top 15 in the world in his events, the 100 and 200 meter dash," but neither the report nor Mr. Merriweather's subsequent depositionprovides information that would be necessary to support that assertion, such as Mr. DeRosier's previous rankings, race times, or career trajectory. (Merriweather Report, ECF No. 64, Exh. 1, at 1.) For example, the report projects that Mr. DeRosier would have earned $658,000 for top scores in major national and international competitions and $500,000 in appearance fees and prize money, but does not provide a specific breakdown as to how many races Mr. DeRosier would have to run per year and how he would have to rank in those races to achieve those earnings. Moreover, the report does not set forth the qualification criteria for these races or explain why Mr. DeRosier could be expected to qualify for those races based on his past performance. (Id., at 2-5.) The report also does not offer any information about industry standards to support its projections.
Indeed, Mr. Merriweather stated in deposition that he did not know - either at the time of his deposition or at the time of writing the report - Mr. DeRosier's past rankings. (Merriweather Deposition, ECF No. 64, Exh. 2, at 176.) He did not know how many races Mr. DeRosier had run in previous years. (Id. at 165.) Although the report projected Mr. DeRosier's profits over a five-year timeframe, Mr. Merriweather stated that he did not know Mr. DeRosier's age (id. at 164), to say nothing of his health, projected career length, or trends in his sprinting speeds over time. Furthermore, although the purpose of the report is to estimate financial damages, it offers no information about Mr. DeRosier's past earnings as a competitive runner.5 Mr. Merriweatherstated in deposition that he could not remember exactly how he reached some of his financial estimates. (Id. at 256-58.)
In sum, Mr. Merriweather's report and subsequent deposition are utterly lacking in information about industry standards, the earnings and racing practices of similarly situated athletes, and even basic personal facts about Mr. DeRosier that could support his estimates about lost earnings and earning capacity. This court therefore must conclude that there is "simply too great an analytical gap between the data and the opinion proffered" to admit Mr. Merriweather's testimony. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). "An essential part of the Court's gate keeping function is to ensure that the expert testimony is more than mere speculation," Giddings v. Bristol-Myers Squibb Co., 192 F. Supp. 2d 421, 425 (D. Md. 2002), and this court cannot find that Mr. Merriweather's testimony, though sincere, rises above the level of conjecture. Thus, without reaching the question of Mr. Merriweather's qualifications as an expert witness, his testimony must be excluded based on its wholly speculative and conclusory methodology.
To continue reading
Request your trial